Fire Brigade Employees' Union of New South Wales v Fire & Rescue NSW

Submission for the FBEU 13Mr J Nolan of counsel submitted that FRNSW should be held to its agreement that any new disciplinary process was to be a streamlined process that maintained all existing members' rights and protections, as set out within the Regulation, FRNSW Standing Orders and the Awards: see Re Corrections Health Service Nurses' Award (1999) 90 IR 235 at 245. 14Mr Nolan further submitted that in order to protect and preserve agreements the Commission may, in an appropriate case, make interim orders and/or awards: s 136(1)(d) of the Act. Counsel identified what he considered to be the relevant principles applicable to the making of interim awards and, in that respect, referred Beecham Group Ltd v Bristol Laboratories Pty Ltd [1986] HCA 1; (1968) 118 CLR 618 and how the principles enunciated in Beecham Group Ltd v Bristol Laboratories Pty Ltd were applied in ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229 at [31]-[36] and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and State of New South Wales Director-General of the Department of Premier and Cabinet [2013] NSWIRComm 4, where Backman J made an interim award to preserve the status quo with respect to staff positions in the public service. 15Counsel submitted there was "ample precedent" for the making of an interim award by an industrial tribunal in order to protect against a threatened unilateral alteration of employment conditions: Re Media Entertainment & Arts Alliance; Ex Parte Hoyts Corporation Pty Ltd [1993] HCA 40; (1993) 178 CLR 379. Reference was also made to a decision of the Australian Industrial Relations Commission in Re Western Australian Government v Australian Liquor Hospitality and Miscellaneous Workers Union Redeployment, Retraining and Redundancy (Interim) Award 1994 [Print M7647] 12 December 1995. In that case the Full Bench (Munro J, Harrison DP and Smith C) observed: A review of the authorities indicates that the Commission and its predecessor has exercised restraint in making interim awards. The need to do so has been accepted in a variety of special circumstances, the particulars of which have directly influenced the content of the award made [See for example the summary referred to by Acton DP in Re Manufacturing Chemists Interim Award, Print K6985, pp.4-6; and in decisions recorded in Prints K8746 and K8776]. ... As the High Court observed in Ex parte Hoyts Corporation Pty Ltd, an interim award is a step in the process to the arbitration of a final award. The court also acknowledged that a determination about the need for that step may be influenced by the Commission's perception of what is expedient or necessary to ensure that the jurisdiction in relation to the relevant dispute can be exercised effectively..." (Shop Distributive and Allied Employers Association and Toys 'R' Us (Australia) Pty Ltd Print L9394) In this matter we have taken into account the direction to West Australian agencies from the Department of Productivity and Labor Relations (DOPLAR) to disregard the Interim Award and apply the Regulations. This was based, the letter records, on the Government's opinion that the Interim Award was invalid and inoperative. This was done despite the Employers at that time, in proceedings in this Commission, being both appellants against the Interim Award and themselves applicants to vary the Interim Award based initially on merit grounds, and later on the principles emerging from Re AEU. No application to a court of appropriate jurisdiction had, at that time been made seeking a declaration as to the award's validity. No attempt was made it seems to consider whether parts of the Interim Award would be valid. The Interim Award was, in its totality, opined to be invalid. Understandably given the action by DOPLAR considerable disputation has occurred between the parties. The Employers have indicated that this disputation should not be seen as resulting solely from the actions of DOPLAR, the union too, they argued has actively, both outside and within the Commission attempted to thwart the implementation of Government policy with respect to privatisation and contracting out. We are of the opinion that given the actions of DOPLAR an attempt by interim award to preserve the subject matter of this dispute pending a full hearing is warranted.... 16Mr Nolan submitted that: In this case, firefighters stand to lose the benefit of the significant protections embodied in the present disciplinary provisions. FRNSW proposes to alter those protections unilaterally contrary to its agreement with the FBEU made in the proceedings which led to the 2011 award. It should not be permitted to take this unilateral action in breach of that agreement. FRNSW should be held to its agreement. The interim award is sought in order to preserve the subject matter of the issue in dispute. The interim award if made, will preserve the disciplinary protections of firefighters. It is in the public interest as well as the interests of firefighters in NSW that the relief sought by the FBEU be granted by the Commission.

Submission for FRNSW 17Referring to an affidavit of Rosemary Milkins read in the proceedings, FRNSW submitted that the current discipline provisions in the Regulation were complex, impractical, difficult to administer, excessively time consuming and costly. It was submitted that in some instances the provisions had caused distress to those involved and resulted in prolonged workers compensation absences. Ms Milkins is the Deputy Chief Executive of FRNSW. 18It was further submitted that feedback from those who had used the misconduct discipline provisions had been particularly negative in relation to its effectiveness, in particular in relation to the transparency of the decision making process, its timeliness, impartiality and fairness, and feedback from the process. 19This submission was based on Ms Milkins' evidence that in 2009, a number of Firefighters brought forward complaints of bullying and misconduct. The general awareness of these complaints led to further complaints coming forward, some involving matters going as far back as 30 years. Ms Milkins said in late 2009 the NSW Government agreed to fund a new business unit within FRNSW to manage grievance, conduct and discipline issues in a similar way to contemporary approaches taken elsewhere within the public sector. 20Ms Milkins said that FRNSW had engaged KPMG to review FRNSW workplace conduct governance, processes and culture, resulting in KPMG making 14 recommendations in June 2010. Recommendation five was as follows: "Enhance the transparency of decision making in relation to misconduct and grievances through: improving feedback mechanisms and establishing standards for resolution and reporting; and identifying opportunities to simplify the policies, perhaps into one policy with different categories of misconduct and appropriate remedy processes so that all related issues can be addressed via a single process with appropriate escalation procedures." A copy of the KPMG Report was annexed to Ms Milkins' affidavit. 21Ms Milkins referred to the fact that in January 2011, Ms Janice McLeay, a dispute management specialist consultant, was engaged by FRNSW to conduct an independent investigation and disciplinary process review. The purpose of the engagement was to work out how FRNSW could do things better following an investigation and formal inquiry into complaints made against officers at the Merrylands Fire Station. Ms Milkins stated: The investigation led to a preliminary inquiry and then a formal inquiry. The formal inquiry was assisted by Justice Barry (sic) Hungerford, formerly of the Industrial Relations Commission. The whole process took 19 months to complete. I am aware that a number of employees who participated in the process and/or gave evidence at the formal hearing became seriously distressed and were unable to work for substantial periods of time, including claims for workers compensation for that time. The duration and complexity of process of the Merrylands inquiry reinforced to me that the application of the current disciplinary provisions contained within the Regulation were impractical, difficult to administer, excessively time consuming and costly. Above all, I was, and remain, concerned about the toll the process took on all involved in it, and the toll the process may take on those involved in other disciplinary matters; the Firefighter the subject of complaint, those who brought forward the complaint, the investigator, supervisors, witnesses, Presiding Officer and decision makers. 22Ms Milkins noted that in her report Ms McLeay had made a number of recommendations to assist FRNSW in developing a streamlined disciplinary process that would place emphasis on the early resolution of grievances. Ms McLeay recommended: a. Early resolution of grievances, including local resolution; b. A single investigation process; c. Investigations to be conducted by suitably qualified people; d. Complaints can be made to any person; e. A process that required firefighters subject of complaint to participate in the investigative process and cooperate in responding to questions; f. The removal of the term 'guilty'; g. A risk based approach to suspension; h. That the Workplace Standards Branch make recommendations to the Commissioner as to whether a person has engaged in misconduct; i. A final decision by the Commissioner; and j. Clarification required about what material can be produced to assist a person subject of complaint to answer allegations of misconduct at the earliest opportunity A copy of the report by Ms McLeay dated 1 July 2011 was annexed to Ms Milkins' affidavit. 23Mr M Easton, counsel for FRNSW, submitted that in 2011 the parties agreed to commence negotiations for a new streamlined process. Those negotiations occurred but ultimately failed. In this regard, Ms Milkins stated: Between March 2011 and August 2011, I sought from the FBEU a document that would outline the principles of a new disciplinary process. Having achieved no result after 5 months, I was concerned to expedite the matter and so on 11 August 2011 FRNSW provided the FBEU with a draft flow chart and explanatory table for discussion.... This document formed the basis of our submission to Parliamentary Counsel for the drafting of a new Regulation. In December 2011, when the FBEU developed the position of wanting to retain the Formal Inquiry, I did submit their views to Parliamentary Counsel for consideration in the drafting of a new Regulation. It should be noted it took the FBEU four months to formally respond to our proposal and some nine months after the Awards were agreed. Discussions also continued between the parties informally at monthly reform meetings and quarterly at the Joint Consultative Committees. As stated, at all times when negotiating with the FBEU on behalf of FRNSW about the streamlining of the disciplinary process, FRNSW was seeking an outcome similar to the general public service model, that could deliver a process that did not involve a Formal Inquiry but otherwise provided the usual public sector 'procedural fairness' and 'natural justice' safeguards. The vast majority of government agencies have ceased quasi-judicial discipline processes and moved to an investigation and review model that preserves natural justice, procedural fairness and access to the Industrial Relations Commission. I am advised that the performance and conduct arrangements within the Public Sector Employment and Management Act 2002 (PSEM Act) cover approximately 213,000 public sector employees. ... The procedural guidelines issued pursuant to section 44 of the PSEM Act for the dealing of allegations of misconduct as disciplinary matters are contained within chapter 9 of the Public Service Commission Personnel Handbook. The process for dealing with these matters comprises of four stages - initial determination of an appropriate course of action, investigation, initial decision and implementation of final decision. There are a number of safeguards enshrined by the PSEM Act, to ensure the principles of procedural fairness are adhered to. These include - the capacity to be informed of the issues of complaint or the parameters of the allegation, the capacity to take part in an interview or to make submissions, and the capacity to be informed of any findings and sanctions. The FBEU has stated numerous concerns with the 'rights and protections lost' within their 'Outline of Submissions' of 3 April 2013. I have caused a table to be prepared that correlates each FBEU concern with the relevant provisions applying to the public sector generally.... The Interim Award proposed by the FBEU document filed on 3 April 2013 does not deliver the reform agreed to between FRNSW and the FBEU in the settlement of the 2011 Awards. FRNSW engaged with the FBEU in those negotiations in good faith on the premise that the expensive, time consuming, resource intense and damaging approach would be replaced by a streamlined system. Clearly the Regulation proposed by Parliamentary Counsel largely mirrors the process in the PSEM Act, as it reflects the tried and true practice which has been underway in the public sector for many years. 24Mr Easton addressed the principles governing the making of interim awards. Noting s 16(4) of the Act, which provides for the making of interim awards "in special circumstances" (see Re Crown Employees (Public Sector - Salaries 2011) Award (No 3) [2011] NSWIRComm 104; (2011) 210 IR 458 at [47]-[50] and see Burden v Walgett Shire Council [2006] NSWIRComm 169 at [42]-[43] per Haylen J), it was submitted there was nothing in the present matter that formed an exceptional or unusual instance, and nothing unusual or extraordinary that would ground the Commission's jurisdiction to make an interim award. 25It was submitted the making of an interim award was discretionary and the relevant principles did not appear to be in dispute between the parties. In that regard, both parties referred to and relied on ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead). 26Mr Easton submitted the first consideration was whether the applicant had made out a prima facie case that if the evidence remained as it was there was a probability that at the hearing the applicant will be entitled to relief: i. The applicant must show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending final hearing. ii. The requisite probability is determined by the nature of the rights asserted and the practical consequences of the interim order. The second consideration was whether the inconvenience or injury the applicant was likely to suffer was outweighed by the injury the respondent would suffer if an interim award were made. 27As to a prima facie case, it was submitted that, at final hearing, the Commission's inquiry will necessarily be confined to whether the proposed changes, in this case the repeal of the Regulation and the making of a new regulation would, or would be likely to, impose unjust or unreasonable demands on an employee or render their working environment inherently unsafe: see BlueScope Steel (AIS) Pty Ltd v AWU [2006] NSWIRComm 248 at [12-[15]. 28The FRNSW referred to the applicant's reliance on the agreement in 2011 that: negotiations will commence for a new disciplinary Regulation to replace the current preliminary and formal inquiry process with a streamlined process which otherwise maintains all existing members' rights and protections, as set out within the Regulation, FRNSW Standing Orders and the Awards. 29It was submitted that contrary to the agreement, the applicant now insists that the agreement was only to remove the preliminary inquiry process and that the balance of the Regulation must be preserved. 30Counsel for FRNSW submitted the practical effect of the applicant's 2013 interpretation was that the "rights and protections" referred to in the 2011 document were the "rights" to maintain each specific aspect of the Regulation that could be described as a "protection". This interpretation, it was submitted, was at odds with the express terms of the 2011 Agreement. For example, it was contended, it was not logically, let alone practically, possible to agree upon a "new process [that is] both simpler and quicker" if the "new process" contains all of the "rights" that the applicant says were agreed to be maintained. 31FRNSW submitted the applicant had been consulted about the proposed regulation. On any view of the words used, the subject matter and the process undertaken at the time, the applicant's interpretation of the 2011 Agreement could not stand. Accordingly, for present purposes, it was submitted, the basis of the application must be regarded as unsound and the prospects of the applicant obtaining final relief must be considered low. 32It was next submitted there was no proper basis for making an award about disciplinary matters: Re Social and Community Services Employees (State) Award [2001] NSWIRComm 274 at [345]. The making of a new regulation per se could not be said to impose unjust or unreasonable demands on the applicant's members. At its core, the new regulation and proposed guidelines still required the employer to afford substantive and procedural fairness and provided a mechanism by which complaints and allegations of misconduct were properly handled. 33Importantly, it was submitted, the new regulation would not alter an employee's right to address actual unfairness (as opposed to theoretical or potential unfairness) through the mechanisms available under the Act. Counsel contended the applicant's case, at its highest, was that the new regulation was different to the current regulation and that the applicant preferred the old regulation. 34In relation to the balance of convenience, FRNSW submitted it weighed against the making of an interim award. To the extent that the alleged loss of rights and "concerns" of the applicant could actually visit unfairness upon an individual employee, there was assistance and relief available via the dispute resolution provisions of the Act and via the unfair dismissal regime of the Act, it was submitted. Notably, it was submitted, the applicant's submissions did not identify the injury or inconvenience that its members would suffer in the interim period. The submissions referred to the alleged loss of rights and the case law that addressed the availability of interim relief, but did not go so far as to identify any real injury that must be protected on an interim basis by an interim award. 35FRNSW submitted in the alternative that, if the Commission found that there was some particular unjust or unreasonable circumstance that required the Commission's intervention on an interim basis, the Commission should introduce an interim award provision that imposes the least required interference with the employer's prerogative. 36In that regard, the respondent submitted the following provision would fit such a purpose: The management of conduct and discipline for any rank of [Operational Firefighter and Executive Officer / Retained Firefighter] covered by this award, will be subject to the provisions of Part 2-7 of the Public Sector Employment and Management Act 2002 (NSW) and any guidelines issued under s 44 and in force from time to time as if those terms were reproduced in this award.

Consideration 37The parties are in fundamental disagreement about the meaning and intent of the wording agreed upon in March 2011, namely that: negotiations will commence for a new disciplinary Regulation to replace the current preliminary and formal inquiry process with a streamlined process which otherwise maintains all existing members' rights and protections, as set out within the Regulation, FRNSW Standing Orders and the Awards. 38For its part, the applicant steadfastly insisted that its intention was unequivocally reflected in the words agreed upon. That is, there would be negotiations for a new regulation, but that in doing so all of the Union's existing members' rights and obligations under the Regulation, FRNSW Standing Orders and the Awards would be maintained. In other words, the provisions of the Regulation etc, which set out the rights and obligations of firefighters in connection with allegations of misconduct would be retained in any new regulation including, specifically, the formal inquiry process, elements of which were: (a) the right to be furnished with a copy of the complaint or allegations (current Regulation 36(3)); (b) the right to be furnished with a copy of the charge, setting out the grounds of the alleged misconduct (current Regulation 43(2)); (c) the right to be furnished with a copy of the relevant portions of the Department's file and Preliminary Inquiry Report (current Regulation 43(3)); (d) the right to an inquiry and to be represented at an Inquiry (current Regulation 44(2)); (e) the right to have a plea recorded in response to a charge, and by extension the opportunity to formally show contrition that may then be relied upon in mitigation of penalty; (f) the right to call evidence, and test any evidence being considered (current Regulation 44(6)). 39On the other hand, FRNSW interpreted the agreed words as guaranteeing that certain fundamental rights and obligations reflected in various provisions of the Regulation would be maintained, such as procedural fairness including the right to be informed of any allegation of misconduct, the right to respond to allegations and the right to defend a charge of misconduct. However, the intention was not to simply transfer the existing provisions of the Regulation into a new regulation, make some cosmetic changes so that it appeared there was only one process and not the current two (a preliminary inquiry followed by a formal inquiry) and leave it at that. Importantly, given its experience with the Merrylands Inquiry, which lasted a costly and time-consuming 19 months, FRNSW was seeking to eliminate the formal inquiry process in the Regulation and replace it, in the form of a new regulation, with a model based on the disciplinary process that applies generally to the NSW public service. By this means the respondent was seeking to streamline the process for dealing with alleged misconduct by firefighters. 40By agreeing to negotiate a new regulation to replace the existing Regulation, it may be presumed both parties considered there was a need to do so. If the FBEU had believed the existing Regulation was working satisfactorily, one would have thought it would have resisted any proposal for change. Ms Milkins said in her affidavit that savings of $472,000 per annum were anticipated from the FBEU's commitment to negotiate a new regulation. That saving was to assist in funding the wage increases for firefighters negotiated in 2011. Thus, part of the wage bargaining outcome was a commitment to negotiate a new regulation. 41As I earlier indicated, the impetus for a new regulation seems to have been provided by the Merrylands Inquiry, strengthened by subsequent recommendations of Ms McLeay, who was critical of aspects of the Regulation including the following: The practice of allowing firefighters to elect not to be interviewed at any stage prior to a formal inquiry contributed to the time taken to manage the matters, and the level of formality and cost with which it was then required to be handled.... The rigidity of the Regulation has caused excessive time and financial costs. The strict adherence to the Regulation without alternatives obstructed the early and effective resolution of the matters. The policies and procedures relating to keeping and accessing files caused disagreements between the parties, and delays. It is apparent that these policies and procedures need to be refined. 42The position, therefore, is that flaws were identified in the Regulation and the process under it, the parties agreed to streamline the disciplinary process by negotiating a new regulation and there was - to borrow a term from the law of contract - valuable consideration given for the commitment to negotiate a new regulation. 43I agree with the applicant that it is vital that parties that make agreements or provide undertakings, regardless of whether they are incorporated into formal instruments, comply with the agreement or undertaking. Integrity plays such an important role in industrial relations. In the present case, however, I consider there was a genuine difference of opinion as to the meaning of the words in the March 2011 agreement and the intention behind them. It becomes a matter of which opinion is to be preferred. In determining that question, I think the foremost consideration is that any outcome of negotiations between the parties must constitute matters of substance and not mere tokenism. 44The FBEU's response to the respondent's outline of what it proposed regarding a new regulation was attached to a letter sent to the respondent dated 15 December 2011. The attachment was a marked up version of Division 4 of Part 4 of the Regulation (cll 42 - 45). The marked up version: (a) deleted cl 42 dealing with "Preliminary Inquiries into conduct of firefighter" in its entirety. Clause 42 is in the following terms: 42 Preliminary inquiry into conduct of firefighter (1) The nominated officer may conduct, or may direct another officer to conduct, a preliminary inquiry into a complaint of misconduct against a firefighter. (2) A preliminary inquiry may not be conducted by the officer in charge of the firefighter against whom a complaint of misconduct has been made. (3) A preliminary inquiry is to be conducted in accordance with the Commissioner's Orders or, with respect to any matter for which those Orders do not provide, in such manner as the nominated officer may direct or, subject to any such direction, as the officer conducting the inquiry thinks fit. (4) A formal hearing is not to be held and witnesses are not to be called for examination. (5) The firefighter to whom the complaint relates may make written representations or, if the officer conducting the inquiry so permits, oral representations on any matter relevant to the inquiry. (6) A firefighter who is permitted to make oral representations is entitled to be accompanied by an observer, chosen by the firefighter, while the representations are made. (7) An officer conducting a preliminary inquiry at the direction of the nominated officer must report the result of the inquiry to the nominated officer in writing within the time set by the nominated officer. (b) proposed the following additions (in italics) and deletions (strike through) to cl 43: 43 Charges against firefighter (1) If the nominated officer considers (as a result of a preliminary inquiry current investigation or otherwise) that action should be taken against a firefighter in respect of a complaint of misconduct, the nominated officer may charge the firefighter with the alleged misconduct. (2) Any such charge is to be: (a) prepared in writing setting out the grounds of the alleged misconduct together with the nominated officer's recommendation on penalty should the charge be admitted by the firefighter and (b) a copy is to be served on the firefighter against whom the charge is made. (3) The firefighter, or a duly authorised representative of the firefighter, is to be allowed to read, and to take copies or extracts of, the relevant portions of the departmental file or preliminary inquiry report and any other papers held by NSW Fire Brigades in relation to the charge. (4) The firefighter must, within 10 calendar days after being served with a copy of the charge, report to the nominated officer in writing whether the firefighter admits or denies the charge. (5) If the charge is admitted by the firefighter, submissions may be made to the nominated officer by or on behalf of the firefighter (either orally or in writing) in mitigation of penalty. (6) The nominated officer must send any such submissions together with the nominated officer's recommendation on penalty to the Commissioner. (c) proposed the following additions (in italics) to cl 44(8): 44 Formal inquiry (1) If the firefighter denies the charge or does not admit or deny the charge within 10 calendar days after being served with a copy of it, the nominated officer is to conduct, or direct another officer to conduct, a formal inquiry under this clause. (2) The defendant may appear at the inquiry in person or be represented by a barrister, solicitor or agent. (3) The inquiry may be conducted in the absence of the defendant if the defendant fails to attend the inquiry and if the officer conducting the inquiry is satisfied that the defendant has been served with reasonable notice of the time and place for the inquiry. (4) Service of any such notice may be proved by the oath of the person who served the notice or by affidavit. (5) The officer conducting the inquiry: (a) is to conduct the inquiry in accordance with the Commissioner's Orders or, with respect to any matter for which those Orders do not provide, in such manner as the nominated officer may direct or, subject to any such direction, as the officer conducting the inquiry thinks fit, and (b) is not bound by any law, rules or practice of evidence, and (c) may be informed of any matter in such manner as he or she thinks fit, and (d) must cause a transcript to be prepared of the proceedings of the inquiry. (6) The officer conducting the inquiry: (a) may require any firefighter or member of staff of NSW Fire Brigades to appear before the officer and to give evidence, and (b) may require any firefighter or member of staff of NSW Fire Brigades to produce to the officer any document or thing relevant to the inquiry. (7) A person who fails to comply with a requirement under subclause (6) without reasonable excuse is guilty of an offence. Maximum penalty: 5 penalty units. (8) The defendant, or a duly authorised representative of the defendant, is entitled to inspect any document or thing furnished under this clause, and is to be afforded every opportunity to give evidence to the inquiry and respond to and test evidence produced by any other person. (d) proposed the following additions (in italics) and deletions (strike through) to cl 45: 45 Formal inquiry report (1) An officer conducting an inquiry at the direction of the nominated officer must cause a report of the officer's findings and recommendations, together with the transcript of the proceedings and any document or thing admitted in evidence, to be sent to the nominated officer. (2) If the defendant is found not guilty of misconduct, the nominated officer must terminate any suspension of the defendant immediately. The nominated officer may make further recommendations concerning the findings of the inquiry and must inform the defendant of all recommendations made. (3) If the defendant is found guilty of misconduct, The the nominated officer must cause the report of the findings of a formal inquiry, together with any associated recommendations, transcripts or evidence, to be sent to the Commissioner. (4) Written submissions (including submissions in mitigation of penalty) may be made to the Commissioner, by or on behalf of the defendant, within 10 calendar days or such additional time as the Commissioner allows. (5) If the defendant is found not guilty of misconduct, the nominated officer must terminate any suspension of the defendant immediately. 45It may be seen that the main changes proposed by the FBEU were the deletion of any reference to a preliminary inquiry (leaving only a formal inquiry process) and a strengthening of a firefighter's right "to be afforded every opportunity to give evidence to the inquiry and respond to and test evidence produced by any other person." 46I do not understand how the FBEU's proposal could be regarded as streamlining the disciplinary process and how it would make any new process "simpler and quicker". Regardless of whether the nature of the misconduct warranted only counselling or a warning, the FBEU's proposal would require a charge to be laid if the firefighter contested the allegation and would require the respondent to launch immediately into a formal inquiry with all of its inherent delay and complexity. There would be no opportunity to resolve an allegation in an informal manner, promptly, confidentially and as close as possible to the source of the complaint or allegation. 47The FBEU proposed that an interim award be made until the parties had negotiated a new regulation. The proposed interim award was essentially designed to maintain the status quo, albeit it with a number of embellishments favouring the FBEU's position. The proposed interim award added nothing to the debate about a more streamlined disciplinary process. 48FRNSW first provided the FBEU with an outline of its position on 11 August 2011. A considerable time later the respondent provided a draft Fire (Disciplinary Process) Regulation 2012 on 25 October 2012. The Explanatory Note stated that the new provisions: (a) replace the current preliminary investigation and formal inquiry process with a one-step investigation process, and (b) allow remedial action to be taken at any point during the process, and (c) enable the issuing of procedural guidelines by the Commissioner for the purposes of dealing with allegations of misconduct against firefighters as a disciplinary matter and the taking of disciplinary action with respect to firefighters under that Part [Part 4], and (d) give the Commissioner power to deal with allegations of misconduct, unsatisfactory performance and take remedial action or disciplinary action, and (e) set out the circumstances in which firefighters may be suspended from duty. 49FRNSW also provided a copy of draft "Procedural Guidelines for the Management of Conduct and Performance". These were the procedural guidelines referred to in the Draft Regulation at cl 36, which states: 36 Issuing of procedural guidelines (1) The Commissioner may, from time to time, issue guidelines for the purposes of: (a) dealing with allegations of misconduct against firefighters as a disciplinary matter, and (b) the taking of disciplinary action with respect to firefighters under this Part, including disciplinary action in relation to unsatisfactory performance, and (c) any other matter referred to in this Part. (2) The procedural guidelines must be consistent with the rules of procedural fairness. (3) Without limiting subclause (2), the procedural guidelines are to ensure that: (a) a firefighter to whom an allegation of misconduct relates: (i) is advised in writing of the alleged misconduct and that the allegation may lead to disciplinary action being taken with respect to the firefighter, and (ii) is given an opportunity to respond to the allegation, and (b) a firefighter against whom the Commissioner is proposing to take disciplinary action under Division 3 is given a reasonable opportunity to make a submission in relation to that proposed action. (4) The Commissioner may from time to time amend, revoke or replace the procedural guidelines. (5) The procedural guidelines as in force from time to time must be made publicly available in such manner as the Commissioner thinks appropriate. (6) A formal hearing involving the legal representation of parties and the clling and cross-examination of witness is not to be held in relation to an allegation of misconduct and the taking of disciplinary action with respect to a firefighter. (7) However, subclause (6) does not prevent the Commissioner from: (a) conducting such investigations into an allegation of misconduct as the Commissioner considers necessary, or (b) conducting interviews with the firefighter to whom the allegation relates or with any other person in connection with the matter concerned, or (c) taking signed statements from the firefighter or any such person. 50The Guidelines were very comprehensive and based essentially on those applying to the general public service. If adopted they would, in my opinion, assist in avoiding many of the mistakes and delays that occurred in the preliminary inquiry stage of the Merrylands Inquiry. My only concern about the status of the Guidelines is that despite heavy reliance on them in the Draft Regulation, the Commissioner may amend, revoke or replace them without any reference to or consultation with the FBEU. I do not think that is an acceptable arrangement and as I propose later in this decision any change to a new regulation should only be made after a proper process of consultation has occurred and the FBEU maintains a right to bring the matter to the Commission before any amendment is promulgated. 51Subject to what I have just stated, my view is that provided the basic rights and protections afforded to firefighters are not compromised when they are required to deal with allegations of misconduct it is not necessary for a formal inquiry process to be retained in any new regulation. The only "right" or "protection" of any substance that would not be retained under the FRNSW's proposed regulation and accompanying guidelines is that the firefighter accused of misconduct will not have the opportunity to test, by way of cross-examination, adverse oral or documentary material provided to the person charged with the responsibility of determining whether the allegations regarding misconduct have been made out and upon which that person may rely. That may seem a significant omission, but it needs to be considered in light of the following: (a) under FRNSW's proposals: (i) allegations must be put to the employee subject to the investigation and the employee must be provided with an opportunity to respond to the allegations. The employee is to be advised, in writing, of the specific details of any allegations as soon as practicable, having regard to the nature and circumstances of the matter. This requires sufficient detail to enable an accurate response. The letter should also give such relevant information that will fairly enable the employee to respond - this might include the date, time, location and details of the alleged incident. The employee should also be advised that the allegation, if proven, may result in disciplinary action; (ii) in any interview with the employer regarding allegations of misconduct the employee is entitled bring any written submissions to any interview that takes place and is to be given 7 days (or longer in complex matters) from the interview to provide any further written submissions. Extensions of time may be available; (iii) the employee is to be advised that a support person may be present in any interview. The support person may act as a witness or adviser and may speak on the accused employee's behalf; (iv) if the person charged with making a decision regarding whether misconduct has been made out has determined that on the balance of the probabilities an employee has engaged in misconduct and that disciplinary action may be appropriate, he or she must be notified in writing of that opinion. The written notification must include: the details of the misconduct that the decision maker is of the opinion the employee has engaged in; the full investigation report with all supporting attachments, subject to any legislative or confidentiality requirements precluding disclosure. (If the matter concerns a Protected Disclosure or confidentiality the identity of the person who made the disclosure is only to be revealed in the investigation report if it is essential having regard to the principles of procedural fairness - that is, essential for the employee to be able to respond to the allegation); an outline of the disciplinary action that the decision maker is considering imposing or recommending, including the severest disciplinary action that is being considered for the particular matter. In particular the employee must be advised if dismissal, or a direction to resign is being considered; any previous employment matters (such as past remedial actions, monitoring programs, or discipline matters or alternatively previous satisfactory work history) to be taken into account; the advice that the employee has 14 days from the receipt of the written notice to make a submission and to provide any additional information which he or she considers should be taken into account in relation to the disciplinary action being considered before a final decision is made. The employee's submission may address such matters including the finding of the decision maker that he or she has engaged in misconduct, the findings of the investigation report or any extenuating and mitigating circumstances. The decision maker shall also consider any submission made on behalf of the employee by the union. the decision maker has the discretion to extend the period for response, having regard to the overall circumstances and the need to ensure procedural fairness, if the employee applies for additional time and provides reasonable grounds for seeking the extension. the advice that the employee will be given an opportunity to have an interview with the final decision maker, accompanied by a union or other representative (not taking a legal advocacy role) before a final decision is made. The support person may speak on behalf of the employee but may not cross-examine the decision maker. A request for an interview should be made within 7 days of receipt of the written response. the interview is not an opportunity to further examine evidentiary material or to provide extensive submissions on the evidence. The purpose of the interview is for the decision maker to determine the appropriateness of a particular disciplinary action. the advice that these further submissions and/or additional information will be considered before a final decision is made to implement the disciplinary action being considered. (v) each step in the disciplinary process must be taken and documented before the decision maker may make a final decision. It is essential that the decision maker's consideration of the most severe disciplinary action, must not involve any pre-judgment as to what disciplinary action, if any, is ultimately applied to the employee; (vi) in making a decision as to disciplinary action, the decision maker must consider all the material before them, including the content of any interview or further submissions from the employee; (vii) if the disciplinary action may involve removal of the employee from employment, a recommendation will be forwarded to a senior employee who is the delegated decision maker for disciplinary action that involves termination of employment. Any requested interview will be held with the final decision maker; (viii) the employee will be advised in writing of the final decision as to disciplinary action and if applicable, the date from which the decision becomes effective; (ix) all stages including the determination stage must be made in a timely and expeditious fashion. (b) the FBEU may, at any point during the disciplinary process, notify the existence of an industrial dispute to the Industrial Relations Commission. The Commission may intervene using its conciliation and, if necessary, arbitration powers. For example, if an employee is advised that as a consequence of the employer's findings he or she is to be dismissed, the Commission may make an interim order under s 136(1)(d) of the Act that the employee shall not be dismissed until the Commission has had the opportunity to hear the matter and make final orders about the fairness or otherwise of the decision to dismiss. An individual employee may apply for an order under Ch 2, Pt 6 of the Act that the employer not dismiss the employee as a consequence of disciplinary proceedings. The access to a tribunal such as the Commission and the availability of appropriate remedies would seem to me to render a formal inquiry process conducted by the employer as unnecessary or superfluous; (c) in a Recommendation I made in 2002 (5 September 2002) in Matters IRC 4534 and 4545 of 2002, which involved the present parties, I disagreed with the proposition that firefighters are no different to other workers when it comes to their rights in relation to termination of employment. I said that firefighters hold a special position in the community and they are regarded with a high degree of trust and respect by the community. I did go on to say, however, that if firefighters betray that trust and respect it may be necessary for them to be removed swiftly subject to procedural fairness and provision for review. The same is true of other emergency services personnel such as police and ambulance officers. A disciplinary process that requires a preliminary inquiry followed by a formal inquiry (followed possibly by a review by a tribunal), with its attendant delay and duplication is inconsistent with the notion of swift removal; (d) I am not aware of any other disciplinary process applying to emergency services personnel that provides for a formal inquiry process whereby an employee accused of misconduct has a right to cross-examine his accuser prior to any decision being made by the employer regarding what disciplinary action should be taken. The disciplinary process applying to paramedics employed in the Ambulance Service, for example, is very similar to that proposed by FRNSW. In respect of police, the Police Act 1990 provides in s 181D(1) that: The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. However, s 181D(3) provides: (3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. There is no provision in the Police Act for an officer to cross-examine his or her accuser as part of the removal process. Instead the Police Act entitles the removed officer to apply to the Industrial Relations Commission for a review of the order on the ground that the removal is harsh, unreasonable or unjust (see ss 181E, F and G). It is only then that the officer may test the evidence against him or her by cross-examination. 52The absence of a formal inquiry process does not in any way prejudice a firefighter charged with misconduct. The FBEU submitted that, in the Merrylands Inquiry, if there had not been a formal inquiry process the preliminary inquiry would have resulted in the officers being dismissed. As it was, the formal inquiry cleared the officers of any misconduct. As I understand it, at least one of the accused officers refused to participate in the preliminary inquiry making it something of a 'lame duck'. Be that as it may, however, access to the Industrial Relations Commission, and the remedies available under the Act to public sector employees who are subject to a disciplinary process, is more than sufficient protection for those employees. A formal inquiry process conducted by the employer is otiose.

FBEU's objections to FRNSW proposals 53I should deal with each of the FBEU's objections and concerns regarding FRNSW's proposals for a new regulation and accompanying guidelines and the rights and protections the Union contends will be lost.

The right to be furnished with a copy of the complaint or allegations 54The guidelines provide that an employee subject to allegations of misconduct must be informed about an investigation as soon as practicable. The employee is to be advised, in writing, of the specific details of the allegations as soon as practicable, having regard to the nature and circumstances of the matter. This will require sufficient detail to enable an accurate response. The letter is to provide such relevant information that will fairly enable the employee to respond. The employee should also be advised that the allegation, if proven, may result in disciplinary action. 55The current Regulation requires that a firefighter against whom the complaint is made must be given a copy of it (r 36(3)). That regulation is framed in the context of a complaint having been made by another firefighter. Curiously, the current Regulation limits the complaints that may be made to that of "A firefighter..." (r 36(1)). In any event, it is clear that a firefighter under FRNSW's proposals would be provided with any allegation against him or her in sufficient detail so as to enable the firefighter to accurately respond. This may well be an advantage over the current provision because the complaint may be poorly drafted such that it is not sufficiently comprehensible. No prejudice or loss of rights or protections arises in respect of this matter.

The right to be furnished with a copy of the charge, setting out the grounds of the alleged misconduct 56The current Regulation (r 43(2)) is framed in the context of a formal charge being laid against the firefighter. FRNSW's proposals move away from the formalities of a charge and provide in the Draft Regulation that the procedure laid down in the Guidelines is to be followed, subject to what the Regulation prescribes: see cl 36. 57Earlier, I listed what information a firefighter would be provided with in the event it was considered the firefighter had engaged in misconduct and that disciplinary action may be appropriate. That information is more than what is presently required to be furnished to the firefighter, which is limited to a copy of the charge and the grounds of the alleged misconduct. No prejudice or loss of rights or protections arises in respect of this matter.

The right to an Inquiry and to be represented at an Inquiry 58I have already dealt with this issue and concluded there is no loss of rights or protections under FRNSW's reform proposals.

The right to have a plea recorded in response to a charge, and by extension the opportunity to formally show contrition that may then be relied upon in mitigation of penalty 59The current Regulation provides that the firefighter may admit or deny the charge (r 44(4)) and, if an admission is made, may make submissions in mitigation of penalty (r 44(5)). It is clear that under FRNSW's proposals a firefighter may admit the misconduct and any investigation is to take into account extenuating and mitigating circumstances. It would also be open under FRNSW's proposals for the person charged with making a decision about misconduct to take into account any submission pleading contrition or remorse in mitigation of the penalty. No prejudice or loss of rights or protections arises in respect of this matter.

The right to call evidence and test any evidence being considered 60FRNSW's proposals provide for the right of a firefighter to respond to any allegations of misconduct and to put forward any evidence supporting his or her position. The proposals do not provide for cross-examination of witnesses and indeed make provision against that occurring. I earlier addressed this issue and concluded there was no loss of rights or protections given the access available to the Industrial Relations Commission and the remedies available under the Act.

The right to inspect any document or thing furnished during the course of a Formal Inquiry 61I have dealt with the issue of the Formal Inquiry. Under FRNSW's proposals the firefighter is entitled, inter alia, to receive the full investigation report with all supporting attachments, subject to any legislative or confidentiality requirements precluding disclosure. I think this is covered in the proposed guidelines but to make it clear, in my view, the firefighter accused of misconduct is entitled to inspect any document or thing relied upon by the investigator in compiling the investigation report, subject to protected disclosure requirements.

The right to admit guilt or be found guilty before remedial or disciplinary action is imposed 62There is nothing under FRNSW's proposals that would prevent a firefighter admitting the misconduct at any stage of the disciplinary process.

The right to remove any record of disciplinary action taken against a firefighter under current Regulation 46(1)(a), (b) or (c) if the firefighter has been of good behaviour for at least 2 years since the taking of the action 63Although the State Records Act 1998 may require records of disciplinary action taken against a firefighter to be preserved, I see no reason why the guidelines could not provide that FRNSW would not have regard to disciplinary action taken against a firefighter under current Regulation 46(1)(a), (b) or (c) if the firefighter has been of good behaviour for at least two years since the taking of the action. Regulation 46(1)(a), (b) and (c) identifies the remedies to be applied in what might be regarded as relatively minor misconduct. The Regulation provides: 46(1) The Commissioner, after considering a report in which a firefighter is found guilty of misconduct and any submission made by or on behalf of the firefighter, may deal with the matter in any one or more of the following ways: (a) by taking remedial action against the firefighter, (b) by giving the firefighter a caution or reprimand, (c) by imposing on the firefighter a fine not exceeding 10 penalty units, ...

Rights regarding suspension from duty, including the requirement for all reasonable steps to be taken for a firefighter to be informed of the reason for the suspension and given an opportunity to respond before the suspension takes effect 64Clause 37(3) of the current Regulation provides: A firefighter may not be suspended unless all reasonable steps have been taken to ensure that the firefighter has been informed of the reason for the suspension and has been given an opportunity to respond. 65The procedural guidelines to accompany FRNSW's Draft Regulation provide: Any action to suspend an employee is not to be made unless all reasonable steps have been taken to ensure that the employee has been informed of the reason for the suspension and has been given an opportunity to respond. 66I note that the requirement to inform the firefighter of the reason for suspension and provide an opportunity to respond is contained in the Draft Regulation in relation to a suspension by an authorised officer (see cl 41(3) of the draft), but not when the firefighter is suspended for misconduct or where the firefighter has been charged with a criminal offence. I do not understand the reason for the distinction. The parties might consider whether this matter should be included in the Draft Regulation as part of cl 40. 67The FBEU also complains that clauses providing for a maintenance payment during suspension (current r 39(2)), reimbursement of pay if a complaint of misconduct is dismissed (current r 39(3)) and reimbursement of pay if found guilty (current r 39(4)), have not been included in the Draft Regulation. 68The Draft Regulation provides in cl 40 (which deals with suspension pending a decision in relation to misconduct or a criminal charge) regarding pay whilst suspended, the following: (2) Any salary payable to a person as a firefighter while the person is suspended from duty under this clause is (if the Commissioner so directs) to be withheld. (3) If: (a) it is decided to take disciplinary action with respect to the person for the misconduct, or (b) the person is convicted of the offence concerned, the salary withheld under subclause (2) is forfeited to the State unless the Commissioner otherwise directs or that the salary was due to the person in respect of a period before the suspension was imposed. Clause 41, which deals with suspension by an authorised officer, does not deal with the question of pay. That seems to me to be inconsistent. 69The guidelines regarding pay whilst suspended provide: Any decision to suspend without pay is to have regard to the public sector wide guidelines for suspension from duty (ie Premier's Memorandum 94-35). ... It should be noted that an employee suspended without pay will accrue salary during the period of suspension. During this period the salary is withheld. Any salary withheld under these provisions will be forfeited to the State unless the Commissioner or delegate otherwise directs, or the salary was due to the [firefighter] in respect to a period before the suspension was imposed. The position of a suspended employee shall not be permanently filled while they are on suspension. If no disciplinary action is taken against the employee or he or she is found not guilty in relation to a criminal matter, he or she will be paid the salary that was withheld. 70Clause 39(1) of the current Regulation provides that: Payment of a firefighter is not to be stopped during a suspension under clause 37 (1) (a) that has not been confirmed, but is to be stopped during such a suspension that has been confirmed, unless otherwise determined by the Commissioner. Clause 37(1)(a) refers to the situation where a firefighter is suspended for misconduct. It does not seem to me there is any loss of right in connection with payment whilst suspended; both the current Regulation and Draft Regulation provide for payment to be withheld under a suspension. 71Clause 39(2), (3) and (4) of the current Regulation provide: (2) If satisfied that the circumstances so warrant, the Commissioner may approve a maintenance payment to a firefighter under a suspension that has been confirmed of such amount and for such period as the Commissioner may direct. (3) A firefighter in respect of whom a complaint of misconduct is dismissed is to be reimbursed for any pay (including any retainer) lost during any period of suspension less any maintenance paid during that period. (4) If a firefighter under suspension is found guilty of misconduct, the Commissioner may approve the reimbursement of such part of any pay (including any retainer) lost during the suspension as the Commissioner may direct. 72In relation to cl 39(2) the current position is that it lies within the discretion of the Commissioner to approve a maintenance payment whilst a firefighter is under suspension. Under cl 40(2) of the proposed Draft Regulation it lies in the Commissioner's discretion as to whether salary payments cease or not during a suspension. There is no loss of a right in this connection. The same conclusion is available in respect of cll 39(3) and (4) if one compares those provisions with cl 40(3) of the Draft Regulation and the guidelines which provide: If no disciplinary action is taken against the employee or he or she is found not guilty in relation to a criminal matter, he or she will be paid the salary that was withheld.

The right that a fine is not to be deducted until 30 days after the Commissioner's decision to impose the fine 73Clause 47(2) of the current Regulation provides: (2) A fine is not to be deducted from the firefighter's pay until 30 days after the Commissioner's decision to impose the fine has been made known to the firefighter. 74Clause 44 of the Draft Regulation provides that: If a fine is imposed under this Part on a firefighter, the person responsible for paying the firefighter's salary is, on receiving notice of the imposition of the fine, to deduct the amount of the fine from the salary payable to the firefighter in such manner as the Commissioner determines. 75It seems to me there is a loss of a right in connection with the paying of fines. The parties should consider amending the Draft Regulation so the right of a period of grace of 30 days to pay the fine is retained. 76I take the same view about the absence of any provision similar to, or the same as, cl 47(3) in the current Regulation, which provides: (3) Any application made after that period for time to pay is to be considered and, if an appeal is lodged with the Industrial Relations Commission against the imposition of a fine, deductions from the firefighter's pay or retainer towards payment of the fine are not to be made pending determination of the appeal.

The FBEU's other concerns 77In addition to the FBEU's complaints regarding loss of rights and protections, the Union identified a number of other matters in connection with FRNSW's position reflected in the Draft Regulation and accompanying guidelines. These are addressed below.

The introduction of transfers as a form of 'remedial action' 78The Draft Regulation proposes that remedial action may include transfer to another position that does not involve a reduction in salary or demotion to a lower position. I do not consider this to be objectionable. The procedural guidelines provide that if the remedial action proposed is to transfer the employee to a location that would require the employee to move residence, the decision maker must provide the employee with the opportunity to provide a submission about their views of the transfer. The decision maker should be satisfied the employee has no valid reason for opposing the transfer. 79I note that in connection with police that pursuant to s 173 of the Police Act the Commissioner may take non-reviewable action against a police officer who has engaged in misconduct or who is guilty of unsatisfactory performance. Schedule 1 to the Act defines non-reviewable action as including a non-disciplinary transfer.

Introduction of 'unsatisfactory performance' as a discipline/conduct issue 80Clause 38 of FRNSW's Draft Regulation makes provision for dealing with unsatisfactory performance of a firefighter by the taking of remedial action, which, if unsuccessful, may lead to disciplinary action. Clause 38 has no direct counterpart in the current Regulation, although it is apparent from the definition of remedial action in cl 34 that the Regulation contemplates action being taken against a firefighter whose performance is unsatisfactory. In that respect, remedial action is relevantly defined as including: ... (c) monitoring the firefighter's conduct or performance, (d) implementing a performance improvement plan, (e) the issuing of a warning to the firefighter that certain conduct is unacceptable or that the firefighter's performance is not satisfactory, ... (emphasis in italics added) 81The FBEU's complaint appears to be that FRNSW proposes that unsatisfactory performance may be elevated to a disciplinary issue and be subject to the sanctions available in that respect. It is conceivable that the performance by a firefighter of his or her duties may be so unsatisfactory as to attract disciplinary action, which may include dismissal. In those circumstances, it would be unreasonable to limit the Commissioner's powers to imposing remedial action such as warning or counselling or further training. 82There are safeguards built into the Draft Regulation such that the Commissioner is required to notify the firefighter in writing that the firefighter's performance may lead to disciplinary action being taken and the firefighter must be given the opportunity to respond to the Commissioner's opinion about his or her performance. Further, before any disciplinary action is taken the firefighter must be given an opportunity to make a submission in relation to the disciplinary action the Commissioner is considering taking.

The general expansion of the definition of misconduct 83 The current Regulation defines misconduct as follows: 35 Misconduct (1) A firefighter is guilty of misconduct if the firefighter: (a) contravenes a provision of Part 3, or (b) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or is convicted elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence so punishable, or (c) is found to have made a statement in connection with an application for appointment as a firefighter that is false or misleading in a material particular. (2) A reference in subclause (1) (b) to the conviction of a firefighter for an offence punishable by imprisonment for 12 months or more includes a reference to the firefighter having been found guilty by a court of such an offence but where no conviction is recorded. 84The Draft Regulation proposed by FRNSW defines misconduct in the following way (see cl 35): (1) For the purpose of this Part, misconduct includes, but is not limited to, any of the following: (a) a contravention of Part 3, (b) performance of duties in such a manner as to justify the taking of disciplinary action, (c) making a statement in connection with an application for appointment as a firefighter that is false or misleading in a material particular, (d) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act' (e) taking any action against another firefighter that is substantially in reprisal for an internal disclosure made by that firefighter (2) For the purposes of this Part, the subject-matter of an allegation of misconduct may relate to an incident or conduct that happened: (a) while the firefighter concerned was not on duty; (b) before the firefighter was appointed to his or her position. (3) In this clause, internal disclosure means a disclosure made by a firefighter regarding the alleged misconduct of another firefighter. 85Clause 39 of the Draft Regulation deals with the disciplinary action that may be taken against a firefighter convicted of a serious offence. Clause 39(3) provides that if a firefighter is found guilty of a serious offence (as defined in cl 39(1)) the Commissioner may take action against the firefighter as if the firefighter had been found to have engaged in misconduct. 86The FBEU has objected to the extension of the definition of misconduct in the Draft Regulation. The extension consists of: (a) the words in the preamble to cl 35 that indicate that "misconduct" is not limited to the definition in the clause; (b) the provision in cl 35(1)(b) that misconduct includes performance of duties in such a manner as to justify the taking of disciplinary action; (c) the taking of detrimental action in reprisal for making a disclosure (see cl 35(1)(d) and (e)); (d) the provision in cl 35(2) that the subject-matter of an allegation of misconduct may relate to an incident or conduct that happened while the firefighter concerned was not on duty or before the firefighter was appointed to his or her position. 87I would not have thought the current Regulation constituted a code in relation to the meaning of misconduct and thereby ousted the common law. I would be prepared to hear the parties further on this and on the other matters extending the meaning of misconduct, but prima facie, I see nothing objectionable about the proposed extensions. I do not understand why firefighters should not be subject to disciplinary action if: their performance of duties is so unsatisfactory it warrants disciplinary action being taken; a firefighter has taken detrimental action in reprisal for making a disclosure; if the misconduct occurred whilst the firefighter was not on duty; or if it occurred prior to the firefighter's appointment (subject to the common law rules governing these latter two circumstances).

The use of a policy document to regulate a number of existing conditions, which would thereafter be at the Commissioner's discretion and could be unilaterally altered at any time, and without notice 88The FBEU's concern about this is understandable. My view is that any change to a new regulation should only be made after a proper process of consultation has occurred and the FBEU maintains a right to bring the matter to the Commission before any amendment is promulgated.

The absence of clearly defined timeframes for the disciplinary process 89This issue is dealt with in the procedural guidelines accompanying the Draft Regulation. Under the heading "Timeliness" the guidelines provide: Any disciplinary or remedial process is to be commenced without delay. It is in the interests of all parties for the matter to be resolved in a timely and expeditious manner. In some cases where other agencies are involved, internal investigative and disciplinary processes may be delayed. For example, reasonable delays may occur where another external investigating body, such as the Police, NSW Ombudsman or Independent Commission Against Corruption (ICAC), has requested that the Fire & Rescue NSW process be deferred while it carries out an investigation. Other matters that may impact on timeliness include: the complexity of the issues the number of witnesses involved the need to seek external or internal expert advice the impact of delay on the fairness of the process, or matters arising from the process such as the suspension of the employee the health or well being of the employee. 90Under the heading "Dealing with Misconduct" the guidelines provide: The process for dealing with misconduct is to be undertaken in a timely and expeditious fashion. As a guide only, uncomplicated matters should generally be concluded within three months from when the initial allegation is made. Some matters will take longer to finalise for a range of reasons but employees should be advised of allegations as soon as practicable. Except as set out below, irrespective of the complexity of the matter, the delegated [officer] will, after 18 weeks from receipt of the allegations by the delegate advise the employee who is the subject of the allegation(s) in writing of the progress of the investigation, the anticipated time it is expected to conclude and outline the reasons for any delays to date and expected delays. Reasons for a delay may include complexity of the matter, exceptional circumstances, a request for delay by an external investigating authority, or availability of the employee. Similar advice is to be sent each subsequent 12 weeks after the first advice. For allegations of misconduct that also raise allegations of criminal conduct, irrespective of the complexity of the matter, the Commissioner or delegate will, after 18 weeks from the date when a decision is made to proceed with such allegations as allegations of misconduct, advise the employee who is the subject of the allegation(s) in writing of the progress of the investigation and the anticipated time it is expected to conclude and outline the reasons for any delays to date or anticipated delays. Reasons for a delay may include complexity of the matter, exceptional circumstances, a request for delay by an external investigating authority, or availability of the employee. Similar advice is to be sent each subsequent 12 weeks. In any event, if a decision is made not to proceed with allegations of misconduct as a disciplinary matter, the employee will be advised of the allegations and the fact that they are not being proceeded with under these Guidelines. Any dispute that arises between the parties concerning the reasons for delay will be dealt with in accordance with the dispute resolution procedures in the relevant Award. 91It is my observation that three months is too long in relation to uncomplicated matters. Further, 18 weeks to report on progress of an investigation is also too long. The parties should consider shorter timeframes. The parties should also consider a statement of principle to be included in any new regulation regarding timeliness.

The absence of a clearly defined role for the Industrial Relations Commission 92As I have earlier stated, the FBEU may bring a matter to the Commission at ant stage of the disciplinary process. Where an individual employee is threatened with dismissal or is dismissed, a right exists under Pt 6 of Ch 2 of the Act for the individual to seek a remedy.

Excessive confidentiality provisions that hinder the ability of a firefighter to make a case in defence 93The procedural guidelines refer to confidentiality in the following contexts: The investigation will be conducted in a confidential manner. Confidential information obtained during the investigation should not be disclosed except for the purpose of the investigation or any action arising from the investigation, or for the purpose of obtaining advice from the relevant union and/or a legal representative. This is to protect the integrity of the process and where any other legal requirements permit, the privacy rights of the person concerned. Similarly, all witnesses, including the employee the subject of the investigation and his or her support person, are to be advised that they should maintain confidentiality and not discuss the matter except for the purposes of the investigation or to meet their personal health or support needs. ... Concluding the interview The investigator should not indicate that any view has been formed. The investigator must advise the employee: if disciplinary action is being considered that they will receive a full copy of the investigation report subject to any legislative or confidentiality requirements precluding disclosure; ... The written notification [to the firefighter indicating misconduct had been found] must include: the full investigation report with all supporting attachments, subject to any legislative or confidentiality requirements precluding disclosure. (If the matter concerns a Protected Disclosure or confidentiality the identity of the person who made the disclosure is only to be revealed in the investigation report if it is essential having regard to the principles of procedural fairness - that is, essential for the employee to be able to respond to the allegation); ... 94In my opinion, the confidentiality provisions are not excessive. In any event, if a dispute arises over a confidentiality issue there is recourse to the Commission.

The treatment of off duty conduct and conduct prior to commencement of employment with FRNSW 95I dealt with this issue earlier under the heading "The general expansion of the definition of misconduct".

No right for suspension to be lifted within 14 days where disciplinary proceedings have not commenced 96Clause 37(4) of the current Regulation provides: (4) A suspension under this clause has effect for the period (not exceeding 14 days) specified by the authorised officer and may be terminated at any time by the Commissioner. 97Clause 40 of the Draft Regulation provides for a firefighter to be suspended if: (a) an allegation that a firefighter has engaged in misconduct is being dealt with as a disciplinary matter, or (b) a firefighter is charged with committing an offence referred to in cl 39. The Commissioner may suspend the firefighter from duty until the allegation of misconduct or the criminal charge has been dealt with. 98Clause 40 clearly contemplates that disciplinary proceedings have commenced, so I do not understand the FBEU's objection in this respect. 99Clause 41 deals with suspension by an authorised officer. It repeats the provision in the current Regulation, namely: A suspension under this clause has effect for the period (not exceeding 14 days) specified by the authorised officer and may be terminated at any time by the Commissioner.

Orders and Directions 100The Commission makes the following orders and directions: (1) The FBEU's application for an interim award is refused. (2) The parties are to meet and to endeavour in good faith to negotiate the terms of a regulation to replace the current Regulation having regard to this decision. (3) The status quo shall prevail, that is, no steps will be taken to amend or replace the current Regulation until the parties have reported back to the Commission on the outcome of their negotiations for a new regulation. (4) The parties shall report back to the Commission on the outcome of their negotiations at 9.30 am on Monday 29 July 2013. (5) Liberty to apply.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2013